Is the CJA suddenly an unauthorized collective bargaining unit?

(JCW is responsible for retitling this press release)(JCW also feels that this is a great reason to surrender your CJA membership and join the ACJ and no, we’re not judges or affiliated with the ACJ in any manner)

October 25, 2016

Last May, the California Judges Association crowed that it had been given “a seat at the table” with the Department of Finance, and that it had averted the repeal of Government Code, section 68203—the statute that pegs any increase in judicial salaries to the average increase given to other state employees. We were told that in order to save section 68203, CJA had to make a couple of small concessions: First, in calculating any judicial pay increase, the average increase in state employee salaries will be offset by any furloughs imposed on other state employees; and second, any interest to be paid to judges as a result of the Mallano v. Chiang lawsuit will be paid at a rate far below the statutory ten percent. These concessions were represented as a small price to pay in order to reap the benefits from anticipated salary increases that would result from current negotiations between the Governor and the 21 state employee bargaining units.

Then came the recent announcement that judicial salaries will go up a measly 1.36 percent this year and that any raises granted retroactively to other state employees for Fiscal Year 2016 won’t figure into our salaries until July 2017. CJA officials have been spinning like gyroscopes ever since. A Courthouse News article on the subject can be found at this link. We make these observations:

Something doesn’t compute, or, more accurately, someone can’t compute. Nobody seemed to emphasize that the average salary increase for state employees is not the average of the raises obtained by a handful of bargaining groups; it’s calculated by including the many state employees who did not get any raise as of July 1. So every year, any raises we get will be quite modest—and diluted further by the concessions that CJA just made.

We were assured that under the CJA deal, the things we were giving up—the interest on the Mallano judgment and the use of furloughs in calculating our salary increases—were small and speculative in nature, and that the things we were going to get—the anticipated salary gains under section 68203—were going to be big. Turns out that it’s the other way around.

By making concessions to preserve section 68203, CJA has compromised it, perhaps irreparably. Section 68203 has been on the books for over half a century. It was created to protect us from the vagaries of Sacramento politics. It was designed to spare us from having to wade into the political muck in order to protect our salaries from inflation. It sets our salary increases by means of a mathematical formula—in the early years, by pegging our salary increases to rises in the Consumer Price Index, and later by linking them to the average salary increases received by state workers across 21 bargaining units. It’s supposed to be a straightforward algorithm, a punch-in-the-numbers neutral methodology.

At least it used to be. Now it’s something that can be messed with.

There’s nothing to stop the executive branch from jamming us next year by threatening to rescind section 68203 again. Sure, we still have a law on the books. But it’s no longer a bulwark against political interference; now it’s a pressure point. Instead of protecting us, section 68203 has become something we have to protect.

CJA has been all over the map over its role in salary negotiations—and on the issue of retroactivity. Back in 2013, CJA issued a communiqué on joint letterhead with the AOC announcing that together they had gotten us modest pay increases—and that they had given up any claim for five years’ worth of salary increases to which we were entitled under section 68203. Within months, the president of CJA at the time did an about-face and declared at a board meeting that “CJA did not negotiate or make any deals” regarding judicial pay. Fast-forward to June 2016, when CJA announced that it had in fact just cut a deal regarding judicial pay. But just last week, the new president told Courthouse News that CJA is not a bargaining entity and does not engage in binding pay negotiations.

More specifically, CJA has done a complete flip since 2013 on the issue of retroactivity. In his latest message, CJA’s lobbyist, Mike Belote, said:

“There was one element of the communication concerning the increase with which CJA disagrees. That indication was that, as bargaining units complete their negotiations in the future, judicial salary increases will not be made retroactive. We think this is contrary to past practice, to the plain reading of the statute and to the basic purpose of Section 68203.”

If CJA believed these words, why did they so proudly announce in November 2013 that they had “agreed” that judges would not get a retroactive raise for the increases we were owed in 2008-2012? Then after a judgment was entered for the back pay and interest CJA had bargained away in 2013, why would they purport to speak, again without authority, on behalf of the judiciary and support amendments to section 68203 that compromised a big chunk of that judgment?

As Mr. Belote pointed out, “This is not an academic issue. There are thousands of dollars at stake.” Perhaps the best advocates for the branch on this particular issue are not the people who so freely conceded it back in 2013.

The Governor seems to be planning for furloughs—so why aren’t we? As part of the latest CJA deal, the judicial branch agreed to allow the average increase in state employee salaries to be offset by any furloughs in calculating our pay. Mr. Belote from CJA downplayed the significance of this concession, assuring us that furloughs are “unlikely.” But in the latest offer to SEIU Local 1000, the largest state employee union, the Governor specifically reserves the right to require furloughs after only one year. You can read about the SEIU negotiations here.

Winter is coming. The Governor and the unions know it. The CJA concession on furloughs may prove disastrous in the years ahead. The furlough is now counted as a cut in pay, but a subsequent restoration of those hours is not counted as an increase. How is that fair?

Now we know why there had to be a lawsuit. CJA knuckled under on the Mallano lawsuit, without so much as speaking with the lead plaintiff or his attorneys. CalHR responded to these concessions by kicking us in the teeth on the issue of retroactivity. This is who we’re dealing with. As Alliance President, Judge Steve White, recently noted, “You’re seeing in that number an expression of hostility toward the judicial branch and judicial salaries.”

So what does the Alliance want?

We want CJA to back away from any salary negotiations. Mr. Belote reassured us at the end of his October 3 video message that “CJA is on the case.” We’d just as soon they be relieved. They don’t speak for all of us, they don’t have the authority to negotiate our pay, and they’ve made a complete hash of the thing up to this point. CJA got played. We got worked.

We’d also like to see the Judicial Council and the AOC put at least as much effort into protecting our salaries as they have in trying to strip judgeships away from Alameda and Santa Clara Counties. The Judicial Council staff was aware of the threat to repeal section 68203. If they were in the room, they should have stepped up; if they weren’t, they should have been there to protect our interests. We understand that judicial pay comes from the overall judicial budget, but the Council needs to make fair and timely raises for judges a budgetary priority, not a bargaining chip to be tossed in during budget negotiations.

We have some fundraising goals designed to permit us to hire a lobbyist to better represent your interests on this and other issues in the near future. If you agree that judges need real representation in Sacramento, join with us—just click on this link and email us saying you want to join the Alliance, or go to our website (link) to make a donation . We keep our membership list and the names of our donors confidential.

Seeing lots of communication from the Alliance of California Judges focused on their pay increases – would be nice to see more communication directed towards improving access to justice and judicial accountability (transparent CJP audit, etc.).

The latest episode of Tani’s Follies, published Friday, October 28, from Courthouse News Service, by Maria Dinzeo:

Judicial Council to Lobby for 189 New Judges
By MARIA DINZEO

(CN) – With California facing a shortage of judges, the Judicial Council wrestled at its October business meeting with how to most diplomatically present that information to the Legislature.

Judge Lorna Alksne of San Diego, who chairs the Workload Assessment Advisory Committee, presented a report on judicial need to the council Thursday, saying 31 of California’s 58 trial courts need about 189 judges. The numbers are based on a three-year average of case filings from 2012 to 2015, Alksne said.

The Legislature requires the council to update the report, called the Judicial Needs Assessment, every two years. Since case filings are down statewide, the need for new judges has fallen from 270 since the last report in 2014.

Judges on the council took issue with the committee’s methodology, which involved multiplying the three-year average of filings in each type of case by case-weight, or time a required to handle a case both on and off the bench. That number is then divided by the available minutes judges have in a year to hear their cases.

Judge Samuel Feng of San Francisco questioned how the committee arrived at the conclusion that it takes 177 minutes to handle a felony case.

“Every felony is different,” he said. “The minutes are very misleading.”

Alksne said the figures averaged from a small sampling of the courts, noting that the case-weights were last updated in 2010.

“We surveyed 20 different courts and we took random time and moment studies from different clerks and different processes in different parts of the court,” she said. “We take those minutes, we figure out what the average is, how long it takes to process a felony. If you think about the majority of the felonies, a lot of them plead out. Some take a long time. You can figure out how many minutes it takes to process a felony in the state of California; it is right now 177 minutes.”

But further complicating the figures, Feng said, are the differences between counties.

“Different counties have different cultures,” he said. “In my county, you could have a 459-second and it could last you three weeks because of the nature of the culture of the attorney.”

If that’s the case, Judge Dean Stout of Inyo County said, then more courts should be participating in the workload studies.

“It’s not going to be popular what I am saying here at all,” Stout said. “I recall back in 2010, one of the criticisms of the numbers was that they really didn’t have a representative number of courts participating in the study. At the time, some of the courts participating maybe did not fully understand the significance of what they were doing and didn’t take it as seriously as they should have. Again, we are all overwhelmed doing our day jobs but still this is very, very important. I think getting everybody to participate is really helpful.”

Alksne added to Stout’s comment.

“There is some reticence for judges to take time, to mark time, and we need to get over that and just say we need to have this information so that we have information that we can give the Legislature that is accurate,” she said. “Somehow, we need to get over that hurdle. We are not lawyers taking down minutes to show what we did or did not do. But we are trying to capture what our need is.”

Judges also proposed adding a few paragraphs about how judges’ workloads have been affected by AB 109 and Proposition 47, two initiatives that attempted to address California’s overcrowded prisons by respectively transferring some nonviolent felons to from state prisons to county jails and converting some types of nonviolent drug and property offenses from felonies to misdemeanors.

The idea was raised by Judge David Buckley of Los Angeles and endorsed by Judge David Rubin of San Diego, who said a brief addendum could be helpful for new legislators who are unfamiliar with how the courts process cases or weren’t around at the outset of criminal realignment.

“Is there a way to have a paragraph or two saying AB 109 was passed, it forced courts to do ‘x,’ that it was going to realign the justice system and reclassify these folks or whatever it was, so people who have not had any experience in the Legislature with AB 109 would know what it was? And then the practical impact on the courts — meaning it required more hearings on this, this and this. Is there room for that or is that too advocacy?” Rubin asked.

Alksne was reluctant to adopt the suggestion, saying the results of criminal realignment — actual or speculative — cannot currently be supported by numbers. “I feel like we don’t know what the effect of AB 109 is. The statistics might not bear out that we need more judges,” she said.

Associate Justice Douglas Miller of the Fourth Appellate District agreed.

“I guess all of that is true but I am not sure that is what we have been asked by the Legislature to do, which was to give statistics based on a moment in time,” he cautioned. “It seems likely that we would be creating a report that is undermining what we are asking [lawmakers] to do and consider when we advocate for more judgeships.”

The council ultimately voted to submit the report to the Legislature in its original form.

After the vote, Alksne addressed Buckley, who had earlier jokingly asked her, “What was more difficult, preparing the report or reporting on the report?”

More funding, more funding, more funding – it’s all branch administration knows how to say, over, and over, and over again, to the State Legislature. This would be a hard sell from the outset, given the current absence of any measurable trust in Sacramento and the Legislature regarding representations made by judicial branch administration, but a particularly hard sell given the fact that the branch seems to have plenty of money to haul the State Auditor into court and block an audit.

Mirror, mirror, on the wall
Who is the biggest hypocrite
Of them all?
Why, you Queen Feckless,
You, and all your spineless minions,
You remain, by far and away
In all the land
The biggest hypocrite of them all.